Aces High Bulletin Board
General Forums => The O' Club => Topic started by: Toad on April 24, 2007, 07:12:28 PM
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There's a 4th Amendment case before the SC.
Here are the basics:
Are passengers 'seized' during a police stop? (http://www.latimes.com/news/nationworld/nation/la-na-scotus24apr24,1,3109258.story?coll=la-headlines-nation)
WASHINGTON — Are the passengers in a car that has been stopped by the police "seized" by the authorities, or are they free to walk away?
The Supreme Court took up that question Monday in a California case that could decide whether passengers are protected from "unreasonable searches and seizures" when officers pull over the vehicle in which they are riding.
Last year, the California Supreme Court gave police more leeway to search occupants of cars they stop when it ruled that drug evidence found on a passenger could be used against him.
The passenger was "not seized as a constitutional matter" when the driver was pulled over, the state court said in a 4-3 decision. Under that reasoning, the passenger had given tacit consent to be searched by staying in the car.
Most of the justices on the U.S. high court said Monday that view did not square with common sense. Several said they would not feel free to walk away if a police officer stopped the car they were riding in. The tenor of their comments suggested the California ruling would be reversed.
OK, you are a SC justice. How would you vote on this one and why? Do a little more research and offer your verdict.
Let's see if we can do this in an intelligent fashion without the usual mudslinging. Just address the question, not the other posters.
OK, yer honor... let's hear it!
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I wonder how it works for occupants of a house? If the police have a warrant to search a home, can they also search all occupants (temporary or permanent)? I would think that the same rules of search and seizure would apply to the occupants of an automobile.
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This is a good piece giving both arguments. Good background before you make your decision, your honors.
Argument Preview: Brendlin v. Califronia on 4/23 (http://www.scotusblog.com/movabletype/archives/2007/04/argument_previe_33.html)
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I believe it comes down to officer safety first. If the officer has a reason for stopping a vehicle, and there is more than one person in the vehicle, the officer should be allowed to search everyone just from a safety standpoint.
What I don't agree with is this. If you have a passenger in your vehicle and that person has illegal drugs on them, or whatever, you can be busted because they were in your vehicle. Doesn't matter if you knew about it or not. I think that's wrong. Bust the person with the drugs, not the owner of the vehicle.
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Originally posted by Hornet33
I believe it comes down to officer safety first. If the officer has a reason for stopping a vehicle, and there is more than one person in the vehicle, the officer should be allowed to search everyone just from a safety standpoint.
What I don't agree with is this. If you have a passenger in your vehicle and that person has illegal drugs on them, or whatever, you can be busted because they were in your vehicle. Doesn't matter if you knew about it or not. I think that's wrong. Bust the person with the drugs, not the owner of the vehicle.
Then arent' you diving into the realm of probible cause?
I would think that if an officer had PC to beleive that the car was being used to commit a crime than ALL of the car would be subject to search to include the occupents
If however, you were stopped for running a stop sign and no PC existed that a crime was being committed or that officer safety was in question than the only thing they are allowed to do is ask for your consent.
On the issue of officer safety: I would think that if they are searching a vehicle to make the situation more secure than they are not conducting a criminal investigation and thus anything other than weapons would not be admissable under evidence rules as they had no PC to search for them.
IE: I pull a guy over for speading and ask to search the occupents for guns or knives but find weed instead, the weed was out of the realm of what I was searching for, much like an actual search warrent.
just my $0.02
EDIT:
It is an interesting theory. Once a car is pulled over for a TRAFFIC violation and has come to a complete stop does a passenger have the right to safely exit the vehicle and keep going?
This is none the less fascinating law.
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A-HEM!
Please READ the second link that describes what happened and the arguments made in the lower court.
Then render a decision.
Youse guys are digressing!
Your honor, sir.
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Originally posted by Toad
This is a good piece giving both arguments. Good background before you make your decision, your honors.
Argument Preview: Brendlin v. Califronia on 4/23 (http://www.scotusblog.com/movabletype/archives/2007/04/argument_previe_33.html)
Sorry didn't read the linky first. Just did.
Clearly this guy is either a very smart criminal or has a very good lawyer, BUT all he had to do when the officer asked for his name was to say, "Sir, giving you my name is a violation of my 4th Amendment rights and I choose not to tell you who I am." At that point if the officer persited he might have a case, as it is he freely gave the officer his name when asked. The officer checked it out and found that the guy was wanted for parole violation. At that point his 4th Amendment rights no longer come into play because he has a legal warrant for his arrest and in the course of carrying out that warrant he was searched and contraband was found.
The fact that he was arrested while being a passenger in the course of a routine traffic stop doesn't matter. All the officer needs is a reason for pulling the vehicle over for it to be a legitimate stop and arrest. Burned out tail light, expired inspection sticker, whatever. Doesn't matter.
The guy opened his mouth, told the officer his name and the officer checked it out. Done deal. Toss the sorry drug dealer in jail and be done with it.
On the issue of walking away from a traffic stop if you are a passenger doesn't matter iether. He didn't try to walk away. If he had and the officer stopped him, he might have a case. That didn't happen in this case so his argument is not based on the facts given concerning this traffic stop.
Why this is even going to the SC is beyond me, except it did come out of a California Court. That's the only thing that seems consitent here, land of fruits and nuts looking out for the crooks instead of the law abiding people.
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Originally posted by Toad
A-HEM!
Please READ the second link that describes what happened and the arguments made in the lower court.
Then render a decision.
Youse guys are digressing!
Your honor, sir.
Yes objection is sustained......My post after editing was after I read the facts of the case.
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Hornet I think this paragraph dives into what you are stating:
Brendlin’s reply brief chides California’s “seizure” analysis as “result-driven” and reliant upon “untenable extensions” of Supreme Court precedent. First, Brendlin argues, California is wrong in asserting that, under Supreme Court precedent, a seizure occurs only when the specific person whom the officer seeks to apprehend is detained. According to Brendlin, the cases cited by California require only that the police action be intentional; a seizure may occur even when an unintended person or thing is the subject of the detention. Second, Brendlin clarifies that a seizure for Fourth Amendment purposes begins when the traffic stop occurs, i.e. when individuals in a car —whether driver or passenger— are subject to the authority of the police officer and other important operations of law. Third, the Court has previously rejected California’s suggestion that a person is not “seized” unless the police willfully use force or direct a show of authority at the person claiming the protections of the Fourth Amendment. Finally, Brendlin argues that — contrary to California’s one-dimensional analysis and characterization of the discovery of the challenged evidence as attenuated — the exclusionary rule applies here because Brendlin’s identity, the discovery of his parole status, and his subsequent arrest and search were all the immediate and direct result of the unlawful traffic stop and the deterrent benefits of excluding the evidence are clear and significant.
He's arguing that the stop itself is a "seizure" in wich case they'd have reason to even ask him his name as he's done nothing wrong....IE passenger of a vehicle.
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My point of view is this. Driving isn't a right, it's a privilege. The person he was riding with did something to make the officer pull them over. Broke a traffic law, whatever. Stopping a vehicle for a violation on PUBLIC streets and asking for identification from everyone in the vehicle is in no way a violation of anyones 4th Amendment rights. He gave the officer his name, and he had a warrant out for his arrest. The officer did just what he was supposed to do.
The guy is guilty and his rights were not violated in my opinion.
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It is all right here for me.
First, California argues that a person is not “seized” unless the police willfully use force or direct a show of authority at the person claiming the Fourth Amendment's protections. Incidental intrusions on a person who is not the subject of police conduct such as those imposed upon a passenger in a car that is subject to a traffic stop, are merely unintended consequences of government action and should not amount to a seizure. In this case, California contends, the police action in stopping the vehicle was directed at the driver, Ms. Simeroth, and any intrusion on Brendlin’s freedom was unintentional and incidental. Second, California argues, a passenger in a car stopped in a normal traffic stop ordinarily would not be “seized” because a reasonable, innocent person would have believed he was free to decline the officer’s requests or otherwise terminate the contact. Third, California argues, there must also be a submission to the show of authority; because Brendlin was merely a passenger in the vehicle being stopped, it was Ms. Simeroth -- not Brendlin -- who submitted to the officer’s show of authority.
If you are stuck there due to government action and can't leave then you have been seized as well.
And later they say any innocent citizen would know they can just leave. That’s utter crap. I have no wants and warrants, but I wouldn't just leave. I always figured any attention you brought to yourself including and especially trying to leave would just make them look harder at you as a passenger.
I would rule in favor or Brendlin.
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the state police stopped me once for a inop turn signal, all the cop did was hand me a postcard that said i had 30 days to fix the light and have the mech that did the repair sign it and mail it to the state.
thats the way a minor infraction should be handled, no hand cuffs, no body searches, no car searches, no background checks, no drug sniffing dogs, no DUI tests, no fine, or whatever else they could think up.
too many cops want to use a minor traffic stop as a fishing expedition. Maybe they are bored, behind on their quota, over zealous, had a bad day, wanabe barny fifes, whatever.
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I have seen first hand a vehicle stopped by an officer with a passenger in it who tried to get out & walk away. The officer drew his weapon & ordered both of them to the ground then handcuffed the male. They were both freed a minute or two later because the officer had no real reason to detain anyone, not even the driver. I got to see it all because the stop happened about 50 feet from where the driver was heading; his house, at which I was a guest standing in the yard.
The officer also ordered me to go back inside the house, but since I was outside before he pulled their car over I ignored him. He got pre-occupied with them & forgot about me. Not all officers are that over the top but some are & if you get out of the vehicle that even a normal officer who is good at his job has stopped even though you are just the passenger, you're taking your life in your own hands.
I was arrested in Roland Ok. just a couple years ago while riding from a job site with a contractor I didn't know; he was driving & got pulled over. When we got pulled over I & the fellow in the back seat were both told to stay in the vehicle when he told the driver to get out. He had pot & pills on him & I didn't know it. I had a loaded weapon on me. It all worked out for me & the other guy but it was touch & go there for about 20 minutes.
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I don't really understand why it could be ruled either way. However, I do know that the Coast Guard can stop any vessel on the water and perform a "Safety Inspection." They do this to vessels they are pretty sure are performing illegal acts.
When, during this "Safety Inspection," they come across drugs or something like that, they then make an arrest for illegal activity.
How legal is this? (honest question, not loaded at all)
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Originally posted by GtoRA2
It is all right here for me.
If you are stuck there due to government action and can't leave then you have been seized as well.
And later they say any innocent citizen would know they can just leave. That’s utter crap. I have no wants and warrants, but I wouldn't just leave. I always figured any attention you brought to yourself including and especially trying to leave would just make them look harder at you as a passenger.
I would rule in favor or Brendlin.
seize (sçz) Pronunciation Key
v. seized, seiz·ing, seiz·es
v. tr.
To grasp suddenly and forcibly; take or grab: seize a sword.
To grasp with the mind; apprehend: seize an idea and develop it to the fullest extent.
To possess oneself of (something): seize an opportunity.
To have a sudden overwhelming effect on: a heinous crime that seized the minds and emotions of the populace.
To overwhelm physically: a person who was seized with a terminal disease.
To put (one) into possession of something.
To vest ownership of a feudal property in.
To have a sudden overwhelming effect on: a heinous crime that seized the minds and emotions of the populace.
To overwhelm physically: a person who was seized with a terminal disease.
To put (one) into possession of something.
To vest ownership of a feudal property in.
To take into custody; capture.
To take quick and forcible possession of; confiscate: seize a cache of illegal drugs.
also seise (sçz)
To put (one) into possession of something.
To vest ownership of a feudal property in.
Nautical To bind (a rope) to another, or to a spar, with turns of small line.
v. intr.
To lay sudden or forcible hold of.
To cohere or fuse with another part as a result of high pressure or temperature and restrict or prevent further motion or flow.
To come to a halt: The talks seized up and were rescheduled.
To exhibit symptoms of seizure activity, usually with convulsions.
He wasn't seized and neither was the vehicle when it was pulled over. They were temporarily detained due to a traffic violation.
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"temporarily detained " thats copspeak for "i'm gona handcuff you until i can find a reason to take you to jail because i know all you civilians have done something wrong"
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Originally posted by lasersailor184
I don't really understand why it could be ruled either way. However, I do know that the Coast Guard can stop any vessel on the water and perform a "Safety Inspection." They do this to vessels they are pretty sure are performing illegal acts.
When, during this "Safety Inspection," they come across drugs or something like that, they then make an arrest for illegal activity.
How legal is this? (honest question, not loaded at all)
Seeing as how I have been a Coast Guard boarding officer, I'll tell you.
14 USC 2 Established the Coast Guard
The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States; shall engage in maritime air surveillance or interdiction to enforce or assist in the enforcement of the laws of the United States; shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department; shall develop, establish, maintain, and operate, with due regard to the requirements of national defense, aids to maritime navigation, ice-breaking facilities, and rescue facilities for the promotion of safety on, under, and over the high seas and waters subject to the jurisdiction of the United States; shall, pursuant to international agreements, develop, establish, maintain, and operate icebreaking facilities on, under, and over waters other than the high seas and waters subject to the jurisdiction of the United States; shall engage in oceanographic research of the high seas and in waters subject to the jurisdiction of the United States; and shall maintain a state of readiness to function as a specialized service in the Navy in time of war, including the fulfillment of Maritime Defense Zone command responsibilities..[1]
TITLE 14 - COAST GUARD
PART I - REGULAR COAST GUARD
CHAPTER 5 - FUNCTIONS AND POWERS
-HEAD-
Sec. 89. Law enforcement
-STATUTE-
(a) The Coast Guard may make inquiries, examinations,
inspections, searches, seizures, and arrests upon the high seas and
waters over which the United States has jurisdiction, for the
prevention, detection, and suppression of violations of laws of the
United States. For such purposes, commissioned, warrant, and petty
officers may at any time go on board of any vessel subject to the
jurisdiction, or to the operation of any law, of the United States,
address inquiries to those on board, examine the ship's documents
and papers, and examine, inspect, and search the vessel and use all
necessary force to compel compliance. When from such inquiries,
examination, inspection, or search it appears that a breach of the
laws of the United States rendering a person liable to arrest is
being, or has been committed, by any person, such person shall be
arrested or, if escaping to shore, shall be immediately pursued and
arrested on shore, or other lawful and appropriate action shall be
taken; or, if it shall appear that a breach of the laws of the
United States has been committed so as to render such vessel, or
the merchandise, or any part thereof, on board of, or brought into
the United States by, such vessel, liable to forfeiture, or so as
to render such vessel liable to a fine or penalty and if necessary
to secure such fine or penalty, such vessel or such merchandise, or
both, shall be seized.
(b) The officers of the Coast Guard insofar as they are engaged,
pursuant to the authority contained in this section, in enforcing
any law of the United States shall:
(1) be deemed to be acting as agents of the particular
executive department or independent establishment charged with
the administration of the particular law; and
(2) be subject to all the rules and regulations promulgated by
such department or independent establishment with respect to the
enforcement of that law.
(c) The provisions of this section are in addition to any powers
conferred by law upon such officers, and not in limitation of any
powers conferred by law upon such officers, or any other officers
of the United States.
So yes we CAN go onboard any US flagged vessel or any vessel in US waters anytime we want with NO probable cause and conduct searches, seize illegal contrband, and arrest violators all without a warrant.
Been there, done that, and have a couple dozen t-shirts.
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Originally posted by john9001
the state police stopped me once for a inop turn signal, all the cop did was hand me a postcard that said i had 30 days to fix the light and have the mech that did the repair sign it and mail it to the state.
thats the way a minor infraction should be handled, no hand cuffs, no body searches, no car searches, no background checks, no drug sniffing dogs, no DUI tests, no fine, or whatever else they could think up.
too many cops want to use a minor traffic stop as a fishing expedition. Maybe they are bored, behind on their quota, over zealous, had a bad day, wanabe barny fifes, whatever.
Yea, I agree give em a ticket and maintain a BLIND eye, who cares what slips through :huh
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too many cops want to use a minor traffic stop as a fishing expedition. Maybe they are bored, behind on their quota, over zealous, had a bad day, wanabe barny fifes, whatever.
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OR---------maybe, just maybe........they're doing their job :O
(PS: Sry Toad for getting off topic (badge part of me came out lol) )
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I'm thinking most of you guys would be lousy SC judges. :)
War stories are nice but that really wasn't what I intended when I started the thread. I was making a bet with myself that we can have a serious discussion in the OC without it breaking down into a mud slinging deathmatch.
I think I've only seen one verdict and I haven't really seen any discussion of the case. We're going seriously off topic here.
C'mon... put on the judicial robes. :)
For myself, I've read through that link twice and I'm still undecided. I can see it both ways. I'm going to do more research.
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Alright, I'm going to come to a decision. Just like every other "Rights" decision ever decided, the COPs need to tell you your rights VERBALLY before they ever do anything.
The Police Officer needs to verbally say over his megaphone to the car that it is the passenger's right to leave and not comply if he so chooses. By staying in the car, he'd be waving that right. This needs to be said out loud, and understood.
And because the officer in this case didn't say it at the time (even though he didn't know to say it), all evidence is found null and void.
Then I'm going to go ahead and rule that the Coast Guard safety inspections are unconstitutional as well. Or at least, in the process of doing a safety inspection, finding illegal substances (or other crimes). If they do find illegal substances, they can't prosecute, but they won't have to give the stuff back either.
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An interesting point in this case is that the traffic stop was bogus.
Sutter County Deputy Sheriff Robert Brokenbrough pulled over a brown 1993 Buick Regal with expired registration tags. Although he'd previously determined that it had temporary tags and a pending application for a new registration, Brokenbrough investigated further.
Sounds like it was a fishing expedition, doesn't it? I'm leaning towards the defendant right now.
Laser, thanks! That's more what I hoped to see.
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An ever more descriptive narrative of the events here. (http://writ.news.findlaw.com/amar/20070330.html)
Justices Lasersailor, Hornet and GtoRA2 you may revisit your rulings in light of this new information. :)
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If I were the judge, and applying common sense, I don't see how passengers could automatically be excluded from driver focus whether on a private or commercial conveyance. Passengers surely at least would be witnesses to some degree what the problem was.
Until the nature of the infraction is clarified, passengers should remain in or near the vehicle as the officer specifies. For passengers to do anything but remain calm and cooperative would only aggravate the situation and possibly increase risk to the officer and themselves.
Depending on the situation and passenger cooperation, incidental additional discoveries might occur. If so, passengers should have no immunity if they are guilty of any part of the driving infraction or other crimes no matter how fortuitously discovered.
It all comes down to probable cause. Many times drivers exhibiting problem behavior are influenced to some degree by their passengers. Often it takes awhile to sort out, but anyone near an unlawful scene should expect some scrutiny until the situation is resolved.
Innocents should have nothing to worry about. Guilties should not escape on technicalities.
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Originally posted by Halo
Innocents should have nothing to worry about. Guilties should not escape on technicalities.
Some of us call those technicalities CONSTITUTIONAL RIGHTS!
Now granted the guy was obviously guilty but lets say for a minute he was not and this was simply a computer error. That's how every case that comes before a court needs to be looked at.
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this has got to be the trickiest thing I have heard of being debated since say oh "Miranda rights"
the topic of a house under warrant search, can anyone in the house at the time have their persons searched?
I'd say that is the heart of the argument.
A car is "similar" but not totally. say a bank robber running form the scene, in a high speed chase, a passenger in the car was NOT seen at the crime, and shown later by video surveillance to NOT be a part of the crime... are they detained and searched the same as the perp? that's a tricky one, but NOT as tricky as...
say you are visiting a friend who is behind your back doing something illegal, and the cops bust in with a warrant, and detain you for being there?
you had no part of whatever, only by your say so, but still...
I have a connection to the Balistrieri family in Milwaukee... and visit some times. younger I had no clue what was up, and visited as a child what I know now was a bosses house. if they raided it then was I able to be legally searched as not only a visitor but also as a minor?
I have a family member that I know uses pot. I do not, and abhor it, but what if visiting the police decided to "bust" them? I am only there to visit, and they can drug test me all they want with NO result, but does that still give them the right?
this has got to be handled very carefully, and I'd say can be of hot and huge debate for many years to come if brought to the proper light.
I personally have yet to have an official opinion on it, but there really is no clear definition in the constitution about being "on the premises" or similar.
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The driver is the one that may have broken a traffic law that caused the stop.
If the passenger exits the vehicle and asked if he was under arrest the officer would have to say either yes or no, if yes the 4th and Miranda applies, if no he walks away if he is smart. If he is not, he goes thu this.
shamus
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Originally posted by Shamus
The driver is the one that may have broken a traffic law that caused the stop.
If the passenger exits the vehicle and asked if he was under arrest the officer would have to say either yes or no, if yes the 4th and Miranda applies, if no he walks away if he is smart. If he is not, he goes thu this.
shamus
that doesn't answer the question though.
what is the officer obliged to say?
what are the passengers rights at a "routine" traffic stop?
is it up to an officer to decide if the stop is NOT "routine"? (I have no problem with that, but what says in the future ALL stops don't become "non-routine" just in case?)
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The officer screwed up by stopping the car AFTER running the plate, thus the stop was illegal making the evidence fruits of the poison tree.... I agree it should be thrown out. The officer knew the vehicle was legally allowed to be on the road, yet stopped him anyway. IMO everything thereafter is garbage, especially when the officer was extensively trained, expected to do a competent professional job, and should know better.
A tag displaying expired registration is PC enough to pull someone over, had he ran the plate as he was stopping him, or after the stop... then its a good good pinch... a real lack of creativity and common sense on the officers part.
The suspect is a dimwit telling the officer his name, he should have responded "I choose not to answer you questions", followed by "and if I'm not under arrest, I would like to leave"...
The officers only concerns, with passengers who are in no way considered suspects, should be officer safety, and that they don't interfere with whatever business the officer has with the driver. Otherwise the state would be giving cops permission to treat people, who officers had no PC to contact, otherwise.
Edit: I could go into how stupid easy it is to generate much jucier PC for traffic stops using teletypes... this officer could have easily made a justified stop with just a little effort. But thats a whole other issue.
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Originally posted by Shamus
The driver is the one that may have broken a traffic law that caused the stop.
If the passenger exits the vehicle and asked if he was under arrest the officer would have to say either yes or no, if yes the 4th and Miranda applies, if no he walks away if he is smart. If he is not, he goes thu this.
shamus
Actually the passenger cant just walk away that easily, there's another way the officers can go about it.
For officer safety reasons alone passengers can be asked to wait where they are and not to "interfere" with the officers business with the driver. Interfere is the key word here because under 148PC its a misdemeanor to "...interfere with an officer while in the performance of duty.."
So if asked "am I under arrest?", the officer can say "no you are not, but for my safety you should wait here, if you try to leave, move around excessively, or otherwise disrupt with this traffic stop before I'm done.. I'll arrest you for interfering with a peace officer"
At that point you are free to leave, but since the officer told you what he considers interference, he could take you to jail should you follow through.
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A) Hornet's missing the point, but we already knew that. The itechnical issue here is whether a passenger who is arrested after a traffic stop can challenge the basis of that traffic stop. In other words, when an officer pulls over a car, has he pulled over just the driver, or the passengers as well?
Arguing "just the driver," as the state does, would create a significant gap in legal definition and common-sense reality. When LEOs halt a conveyance, they are trained to treat all persons on that conveyance as potential threats; the traffic stop is a classic adversarial state-citizen situation. If passengers' involvement is incidental, and they are "free to walk away", why then would both parties agree that the LEO's next action would be to prevent the passenger from leaving the vehicle?
The practical consequences require that all passengers in the car be seized: on the one hand, LEO's would find their job much more dangerous, as passengers asserted their putative Fourth Amendment rights; on the other, this "loophole" would be used to seize drivers with no probable cause whatsoever purely to troll for infractions among the passengers. Laws that empower the state over the people and infringe on rights should be struck down. Rulings that do that, plus make things more dangerous for cops, should never have been made in the first place.
And for those of you who say the passenger should have just said "I'm exercising my Fourth Amendment righhts", see, this is why many people don't like cops. Cops are extensively trained in the legal niceties of how to arrest someone, and what constitutes a crime on paper and before the judge. Citizens might remember something from High School, but it's not their job. And, as we can see from even this discussion, there's a lot of confusion about what constitutes peoples' rights.
This is why we have attorneys. Their job is to know the legal system that is opposing the individual, and be able to engage it as a professional.
And this is why cops have to Mirandize arrestees: it makes the relationship very clear.
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Originally posted by x0847Marine
The suspect is a dimwit telling the officer his name, he should have responded "I choose not to answer you questions", followed by "and if I'm not under arrest, I would like to leave"...
I believe (and I am basing this off of no experience what so ever), that by saying those statements, the suspect makes himself a target and the police officer would immediately believe he had done something wrong. That is based entirely off of me putting myself in the officer's position.
And again, we are back to the original point. Because I believe that non-cooperation would lead to police action, regardless of what I have done, have I been seized in a routine traffic stop?
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Here's another example of where you're free to leave, but doing so could get you arrested for interference..
You exit your pad walking to the liquor store for a .40oz and see all kinds of cops on your block looking to beat some poor minority. Paying them no mind you get to the end of the street and find police tape strewn blocking your path as some pissy little cop is standing there smirking at you.
He tells you to "stop", you ask him "am I under arrest pig?" he says "nope kind sir". You respond "well then, I'm free to leave.. what smells like bacon?", he quips condescendingly "indeed you are free to leave fine citizen, however if you cross my tape I'm free to arrest you for interfering.. its for your safety and mine "
You're free to leave, but if it interferes with officers business he can arrest you.... and courts have always come down on the side of officer safety.
BTW being "arrested" does not equal being "charged", the cops "arrest" people and the DA / city attorney "charges" them in court. Lets say you decide to cross his police tape and he arrests you, the DA could easily drop charges or decline to prosecute which I promise the officer could care less about. He still put you through the hassle / embarrassment of being arrested, booked and having to appear in court.. while at the same time solving his problem of having someone bothering him.
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I think that what's being missed here is that the search of the passenger was incidental to detaining the passenger upon recognition of the passenger as a person wanted for parole violation.
So. The traffic stop may or may not have been viable. The police officer may or may not have had justification to search vehicle occupants on whatever theory of probable cause or safety exists. But, so what?
In the event, upon seeing the passenger, the officer recognized that passenger as a wanted man. No matter how he got there, at that point he was duty-bound to confirm his visual identification and proceed to take the wanted man into custody. He could just as easily have seen the car drive by and recognized the guy.
The guy was out in public in a motor vehicle with windows. He had no reasonable expectation to privacy, so far as his identity was concerned. He placed himself in full public view. He was a fugitive. He was liable to be apprehended at any time, with the existing warrant serving as cause. The search, being incident to his identification which was legal, was legal.
Bailiff, whack his pee-pee! :)
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Originally posted by lasersailor184
I believe (and I am basing this off of no experience what so ever), that by saying those statements, the suspect makes himself a target and the police officer would immediately believe he had done something wrong. That is based entirely off of me putting myself in the officer's position.
And again, we are back to the original point. Because I believe that non-cooperation would lead to police action, regardless of what I have done, have I been seized in a routine traffic stop?
Well I'm not going to get into the nastier "realities" of how the police do things, but you are correct, standing up for yourself is a sketchy proposition if you don't know exactly what you're doing... not only are cops trained extensively, but they develop street smart ways of getting people to cooperate. The easiest way is to use the driver as leverage, "I'll cite your friend unless you talk to me..." at which point you're still allowed to say nothing, and earn your buddy a ticket in the process.
The pressure gets worse should someone have a warrant / arrestable offense... cars have been towed with car loads of people going to jail because their friend in the back seat exersized his / her rights and annoyed the cops.
The police have lots of dirty little tricks at their disposal, exercising every last right you have could be counter productive to having a good day.
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x0847Marine I understand the point of what you are getting at, but I have to ask...
If I am a "passenger" or whatever scenario you choose to put me in, can you search me, and detain me just for being there?
If I ask to leave, and you say "no" when am I able to leave? what are you allowed to do to me while I am "behind the yellow tape" as you state?
what are the laws that govern that? what are my rights as a citizen?
I truly think THAT is the question at hand. I don't intend to separate that from a peace officer doing his / her job, I only ask where does that line of jurisdiction, or power end?
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Originally posted by john9001
the state police stopped me once for a inop turn signal, all the cop did was hand me a postcard that said i had 30 days to fix the light and have the mech that did the repair sign it and mail it to the state.
thats the way a minor infraction should be handled, no hand cuffs, no body searches, no car searches, no background checks, no drug sniffing dogs, no DUI tests, no fine, or whatever else they could think up.
too many cops want to use a minor traffic stop as a fishing expedition. Maybe they are bored, behind on their quota, over zealous, had a bad day, wanabe barny fifes, whatever.
What he said. ^^^
Regards,
Sun
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Originally posted by Gunslinger
Some of us call those technicalities CONSTITUTIONAL RIGHTS!
...)
What bothers me is that when Cops break the highest laws of our land, they are not held accountable.
Say he found an open container hidden under a back seat....
Which is the larger crime? Breaking the constitution, or breaking the open container law for passengers?
Also, by calling a road public and heance, anyone or anything on it is searchable-by this premese it means you can't leave your home without being under the so-called "right" of the state to search you. Is the city sidewalk not public? I've seen pleanty of people harassed for walking.
These laws exsist to protect people from bad laws IMHO. If they can't find a reasonable cause to search someone, maybe there is a good reason. Most true crimes give probable cause for search easily....it's the so-called victimless crimes and other strange codes and ordenences that are and should be hard to police.... because frankly, the state is overstepping it's rights. The proof is in them not wanting to follow the highest laws of the land in order to catch such "crimes".
This is a wise safeguard and should not be allowed to be dissmissed. Cops need to be held to a higher standard. They should be reviewed and held accountable for constitutional violations...if cops break such laws, they are criminals too.
his has got to be the trickiest thing I have heard of being debated since say oh "Miranda rights"
You realize Miranda Rights have been removed, unless you're already arrested? Doesn't even matter if you've asked to speak with a lawyer, but you shouldn't have to cite your rights.
My verdict:.... I don't think Cops have the right to search ANYTHING without a VERY good reason. Citizens shouldn't have ANY need to cite their rights in order use them. Cops should be treated as criminals, if they break the law.
For this case however, if he recognized a wanted person, in a public area; that is a very good reason to question and search THAT person.
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I would overturn the CA. ruling.
- The California ruling is overly broad and beyond the specific circumstances of the case or defendant.
- The defendant in this case identified himself and was a parole violator, if I read the information correctly, thus, the search and seizure of him and his property was lawful.
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I can only say what really happens not what the law says should happen. I'm not a judge so I can't speak to what ruling I would make if I were to put on the robes. However I say adhere to the Constitution of the Untied States of America first & foremost. If I were the judge, that's where I would start.:aok
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Originally posted by Shamus
The driver is the one that may have broken a traffic law that caused the stop.
If the passenger exits the vehicle and asked if he was under arrest the officer would have to say either yes or no, if yes the 4th and Miranda applies, if no he walks away if he is smart. If he is not, he goes thu this.
shamus
Not being "under arrest" does not mean you are free to walk away either.
Terror
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Originally posted by Dinger
A) Hornet's missing the point, but we already knew that. The itechnical issue here is whether a passenger who is arrested after a traffic stop can challenge the basis of that traffic stop. In other words, when an officer pulls over a car, has he pulled over just the driver, or the passengers as well?
No I don't believe I'm missing the point. After reading the other link concerning the traffic stop, I still think the stop was legit. Even though the officer had run the EXPIRED plates and found that the owner of the vehicle had submitted paper work to renew the plates the vehicle was still driving with expired plates, which is illegal. Had the owner properly displayed temp plates as is required by law there wouldn't have been a problem. The officer had every right to stop that vehicle even if it was just to inform the owner that they needed to display temp tags.
Now in this case, during the stop the officer recognized the passenger as being one of two brothers, one of which had a warrant for his arrest. Upon asking for the guys name and finding out he was the one with the warrant, he was placed under arrest and then searched. Remember now that all this happened on a public street. You have no right to privacy out in public. You have the 4th to protect you against having your person or your car searched without probable cause, but once the officer recognized the passenger as a wanted criminal with a valid warrant for his arrest, that no longer applies.
Or are you saying that if a police officer sees, or thinks he sees a known criminal riding as a passenger in a car, the officer can't pull the vehicle over to detirmine who the passenger is?
Also in NO WAY was anyone or anything seized at the time of the traffic stop. By the very definition of the word this did not happen. The officer did not take the car and everything and everyone in it away from the owner. To seize something you must take possesion of something. At no time was the officer in possesion of the car, therefor he did not seize the car from the rightfull owner.
I've worked as a law enforcement officer. I know what a seizer is, and a traffic stop isn't it.
This guy is trying to use some fancy legal crap to get his butt out of trouble and the sad part is people are buying it.
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Originally posted by JB73
x0847Marine I understand the point of what you are getting at, but I have to ask...
If I am a "passenger" or whatever scenario you choose to put me in, can you search me, and detain me just for being there?
If I ask to leave, and you say "no" when am I able to leave? what are you allowed to do to me while I am "behind the yellow tape" as you state?
what are the laws that govern that? what are my rights as a citizen?
I truly think THAT is the question at hand. I don't intend to separate that from a peace officer doing his / her job, I only ask where does that line of jurisdiction, or power end?
Officers are allowed to perform a cursory search, or "pat down", for weapons on just about anyone they have a professional contact with...
Like I described above, you many be free to leave... but if the officer tells you that doing so will delay, obstruct or interfere with his traffic stop.. he could arrest you for 148PC.
The question at hand though is weather or not an arrested passenger can challenge the basis for the stop... which I believe he should be able to. In this case the stop was illegal, or I'll wager will be, since the officer confirmed (he knew) the vehicle was legally allowed to be on the road, but stopped him anyway... IMO if the PC for the stop is bad, everything found thereafter is bad.
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The police officer stopped the same car twice. He found out the first stop that the car's registration was expired, but being renewed.
After stopping it the second time, he then SAW the parole violator. I believe the second stop was illegal, and the same protections that are given to the driver should be given to the passenger.
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Originally posted by lasersailor184
The police officer stopped the same car twice. He found out the first stop that the car's registration was expired, but being renewed.
After stopping it the second time, he then SAW the parole violator. I believe the second stop was illegal, and the same protections that are given to the driver should be given to the passenger.
Actually I think he ran the plate 1st, learning the application was in progress and the car was legally on the roadway. Then later decided to stop the car for displaying an expired tag...
The main purpose, "spirit of the law" stuff, behind stopping a car displaying expired tags is to ascertain the registration status, but in this case the officer confirmed the vehicles legal status via police radio... then stopped them anyway.
If the t-stop was bad, the officer had no legally justifiable reason to be in contact with the passenger IMO.
I dont think allowing the police to gather evidence from cars they stop despite knowing its legally on the road is a good idea.
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I found this here (http://nrcjtablog.blogspot.com/) , supposedly a "forum for discussion on relevant issues in the area of criminal justice training and professions."
Bruce Brendlin was a passenger in a vehicle driven by Karen Simeroth when the vehicle was stopped at 1:40 in the morning on November 27, 2001. Deputy Brokenbrough had observed Simeroth’s 1993 Buick with expired tags. Prior to the stop he had run the vehicle registration and determined that an application for registration was in progress and the vehicle has a temporary tag indicating that the temporary registration expired at the end of November.
Notwithstanding all indications that this vehicle was registered, Deputy Brokenbrough decided to stop the vehicle because he could not determine if the temporary tag matched the vehicle. It was subsequently determined that this stop was bad due to the evidence that the vehicle did, in fact, meet the registration requirements.
I think as many have said this stop was indeed illegal because the Deputy had verified the temporary tag was legit. Thus all evidence stemming from it are "the fruit of the poisonous tree". So Brendlin gets a pass this time, even though he is a druggie scumbag.
Addressing the issue of whether a passenger in a vehicle subject to a traffic stop is “seized” for purposes of the Fourth Amendment, I find that the passenger is indeed seized. I think it's unrealistic to believe that a passenger can just exit the car and walk away from a stop by a police officer. The idea that a passenger can ask permission to leave merely confirms that the passenger is held until released by the arresting officer.
So in addition to the evidence being tainted by the illegal stop, I find that Brendlin was indeed seized and his 4th Amendment rights were violated.
I predict the SC will find for Brendlin as well and I think it will be a near majority.
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It's a tough call imo, one size does not fit all. If the passenger is not an obvious accessory to the crime for which the vehicle was stopped and there is no evidence to indicate they may be hiding something illegal then they should not be subjected to a search without a warrant.
A couple of examples:
1. A stolen car is pulled over. Everyone in the car is a suspect and may be searched.
2. A car is pulled over for speeding and the driver appears intoxicated and the cop smells marijuana. The passenger should not be subjected to search without consent or a warrant.
My $.02
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So California is taking the position that passengers in the car are not "siezed" when it is pulled over. How long will it take for the bad guys in California to figure out that the driver doesn't carry any bad stuff and everybody else runs from the car if it is pulled over? In addition to violating individual rights, California's policy seems enormously stupid.
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Originally posted by Hooligan
So California is taking the position that passengers in the car are not "siezed" when it is pulled over. How long will it take for the bad guys in California to figure out that the driver doesn't carry any bad stuff and everybody else runs from the car if it is pulled over? In addition to violating individual rights, California's policy seems enormously stupid.
Running from the car would be considered "unprovoked flight", which courts have held is enough PC to detain. Sometimes called "felony running".
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Would it be OK to just sorta amble away or would that be felony walking?
;)
PS: Hiya Hooli! Where ya been? Are you still flying AH?
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I feel that if I were an occupent of the car, and if I had drugs on me, I'd dump them under the seat and blame the driver. I shouldnt be arrested. They were in his car.
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OR---------maybe, just maybe........they're doing their job
not allways thou...i have a perfict driving record...and allways made sure my rigs are legal and i stay within the speed limits.i been pulled over proubly 10 times saying i was going a little fast {say 5 or 10 over }which is crap my car is on, i pass those cop speed carts and check my speedo with there lazer carts and its allways on.
just out 4x4'ing with some freinds. a older gray haired cop would see us out there and wave to us and we would keep cruzing around. we allways seen cops out there and was never worried we are legal all the way around. but some young cops came out there and stopped us and yelled we smell dope!! before they even made it too the truck. and we said whatever search us. they had us out and tore his rig up for a hour and then told us, well we were just checkin it out. alot of bad things happen out here like rape and theft. it was all a bunch of crap. we didnt have any dope and we were doing nothing wrong. but they had there hands on there guns and were ready to get some action on. lol
point is i got a spotless record and i get harassed time to time for no reason. but mostly by younger cops. the older cops seem to be much nicer lol can they pass a law that you can only be a cop if your 35 and older? hehe jk:P somtimes they are doing there job..somtimes there not!! and just tring to get some one in trouble for no reason at all.
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Heya Toad:
Naw I haven't flown AH for at least a couple of years. But I occasionally drop by the bulliten board to watch lazs make people cry :).
Hooly
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Originally posted by Toad
I predict the SC will find for Brendlin as well and I think it will be a near majority.
Washington Post
A unanimous Supreme Court ruled yesterday that passengers in vehicles pulled over by the police have the same rights as drivers to challenge the legality of the traffic stop when it results in an arrest.
Woo-hoo! The SC sees it the way I did! They're pretty smart.
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Search 'em all. Anyone anytime.
Also, I'm all for profiling. If someone looks askew, skew 'em.
Cop: Hey bud, can I see what's in your pockets?
Me: Sure officer.
Do you guess the parabola rule holds? 1/3 obey the law. 1/3 disobey. And the middle 1/3 break it as long as they think they can get away with it?
I've no idea.
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Selectively supporting the BoR, eh?
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Originally posted by Toad
Woo-hoo! The SC sees it the way I did! They're pretty smart. [/QUOTE
Good call!:aok
Regards,
Sun